Thursday, September 4, 2008

When Clients Go Bad . . .

A great blog on LLRX by the highly esteemed Conrad Jacoby about a client who obviously did not "get" the whole litigation hold thing.

His post covers a disaster of a case in the US (where else?); Southern New England Telephone Company (“SNET”) v. Global NAPS, Inc., 2008 WL 2568567 (D.Conn. June 23, 2008).

The short version is this: Company executives chose not to preserve electronic evidence, instead choosing to use "Window Washer" (a file shredding utility that advertises itself with the catchy slogan of "What you do on your computer is YOUR business. Keep it that way!") several times to delete and overwrite key evidence. Then they stood up in court and claimed, while under oath, that the deleted evidence (a number of key documents apparently) had never actually existed. This was in direct contradiction to earlier sworn statements made in other earlier litigations.

The use of Window Washer was picked up (of course) by the computer forensics expert, and the case was thrown out of court.

Unlike other You Have To Be Kidding Me cases (such as the notable Zubulake, and the more recent Qualcomm/Broadcom debacle), the blame for this particular eDiscovery disaster was lain squarely at the feet of the recalcitrant client.

But this one case hardly lets lawyers off the hook. Lawyers are still responsible (on both sides of the border) for informing their clients about the risks, and plain stupidity, of deliberately erasing evidence; be it paper or electronic.

So this case simply illustrates what I have often said - don't let your clients do DIY eDiscovery.

Get in an expert.

Be sure you've advised your client, in writing, of the risks associated with certain actions.

Be sure you have told them how to avoid those risks.

And then monitor, monitor, monitor for compliance with your advice.

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